Supreme Court of Georgia considers standard for obtaining a protective order to prevent the deposition of high ranking executives


By: Michael Freed

The Supreme Court of Georgia heard oral argument last week in General Motors LLC v. Buchanan.  This highly watched appeal arose from a trial court’s denial of General Motors’s motion for protective order seeking to prevent its CEO from being deposed in a product liability case.  The Court of Appeals of Georgia granted General Motors’s application for interlocutory review, but affirmed the trial court’s order.  The Court of Appeals held that the trial court did not abuse its discretion by holding that General Motors did not show good cause for the protective order.  The Court of Appeals rejected the notion that a trial court is required to consider prescribed factors when ruling on a motion for protective order, such as whether the witness has unique knowledge of the issues in the case and whether that information could be obtained through less intrusive means.  The Court acknowledged that a trial court may consider those among a myriad of other factors, but neither O.C.G.A. §9-11-26(c) nor prior case law require those factors to be considered.   

General Motors and several amici urged the Court of Appeals to adopt the “apex doctrine,” a framework adopted in various forms by some other states for determining when high-ranking officials and executives may be deposed:   

Under the apex doctrine, an individual objecting to a deposition must first demonstrate he is sufficiently high-ranking to invoke the deposition privilege. Upon this showing, the court then considers whether there are “extraordinary circumstances” that justify deposing the high-ranking officials, based on (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case; and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods. 

The Court of Appeals held that the apex doctrine is inconsistent with Georgia’s liberal discovery rules, and that any exception to those rules should be implemented by the legislature. 

The Supreme Court of Georgia granted General Motors’s petition for a writ of certiorari, stating in its order that it is particularly interested in the following issue: 

What factors should be considered by a trial court in ruling on a motion for a protective order under OCGA § 9-11-26 (c) that seeks to prevent the deposition of a high-ranking officer and what is the appropriate burden of proof as to those factors? 

During oral argument, the Supreme Court appeared especially concerned with if and how it can articulate a standard for trial courts that is subject to appellate review when the statute states that courts may issue protective orders upon a showing of good cause, not that they shall.  

A decision from the Supreme Court is expected later this year.   

For further information and inquiries please contact Michael Freed at